Michail v Mount Druitt & Area Community Legal Centre

District Court of NSW|2017-02-22

The application before the court today

Ms Chrysanthou noted the non-compliance of the plaintiff with the peremptory order and, conformably with the letter sent by the solicitors for the defendant to the plaintiff on 22 February 2017, asked the court to dismiss the proceedings pursuant to rr 12.7(1) and 12.9(2)(c) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), or alternatively s 61(3)(a) or s 61(3)(b) Civil Procedure Act 2005 (NSW), or for the court to require the plaintiff to show cause why the proceedings should not be dismissed.
It is clear from the plaintiff's correspondence that she has no intention of complying with the orders or of attending today. She has been called three times outside the court and does not appear. In those circumstances, a show cause application would be a futility.
The plaintiff has failed to comply with a peremptory order to file an amended statement of claim. She was warned that failure to do so could result in the dismissal of her claim. This is the application the defendant now makes.
While failure to comply with a peremptory order need not be fatal (Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 at 135), the plaintiff's stated refusal to comply with my orders and failure to attend today, in the context of the history of the litigation to date, is continued evidence of the plaintiff's refusal to conduct this litigation in an expeditious and efficient way.
As I noted in my previous judgment, the plaintiff has been given every opportunity to conduct her case, not only by the courts, but also by the registrars who administer the pro bono referral scheme, the New South Wales Bar Association legal assistance referral scheme and the barristers who clearly devoted considerable time to helping the plaintiff. The plaintiff, who has a law degree and has worked in a legal office, must have been aware of the amount of time these persons spent trying to help her. Regrettably, she has responded to their attempts to advise and assist her with abuse and unfounded allegations.

Costs

On 22 February 2017 the solicitors for the defendant forwarded an email to the plaintiff noting her failure to comply with orders and advising: "6. In court tomorrow, we will be applying to the Court to dismiss the Proceedings against the Defendant pursuant to Rule 12.9(2)(c) Uniform Civil Procedure Rules 2005 (NSW) or alternatively Rule 12.7(1) Uniform Civil Procedure Rules 2005 (NSW) or alternatively Section 61(3)(a) or 61(3)(b) of the Civil Procedure Act 2005 (NSW). The Court may require you to show cause as to why the Proceedings should not be dismissed. 7. We will also be seeking orders for you to pay the Defendant's costs of the application and the proceedings. 8. We have copied Mr Mok on this correspondence."
Ms Michail forwarded two replies. The first letter she relied on her email correspondence of 9 and 10 February 2017 and in the second she stated: "Dear all I refer to Ms Bicknell's below email correspondence of even date and it's attached letter. In addition to my below response of even date at 6:28 PM, as I stated in directions hearing of 9 February 2017 at 9:40 AM (please refer to attached recording with my email correspondence of 10 February 2017; since Courts' recordings and transcripts are not authentic), while I have evidence that the opponent has been communicating with the Courts, including but not limited to NSW District Court, in my absence (i.e. one of the many wrongful practices followed by both Courts involved in my claims during the past two years) and the Courts (and other parties) participating in the opponent's continuous abuse of Courts' processes which caused unreasonable delays (amongst other issues, and as the Courts are aware, "Justice delayed is justice denied"), to date, I do not have any evidence that these wrongful practices have ceased. To the contrary, I have evidence that they remain to exist. Further, both the Courts and the opponent have continuously evaded responding to the wrongful practices I repeatedly brought to their attention. Therefore, I will also not comply with any orders that may be made tomorrow, 23 February 2017 directions hearing (I already notified the Court that I would not be appearing in directions hearing scheduled on 23 February 2017 through my email correspondences of 9 February 2017 and stated my reasons, as well as stated my reasons for not complying with any Courts' orders made by both Courts involved in my claims), including but not limited to, any costs orders made in favour of the opponent. All of this is going to move to a level playing field and I do hope that all parties involved would actually cease evading addressing the serious issues at hand once this takes place. Going by my experience with all parties involved in this over the past two years, I am not holding my breath. But the good news is, at least the field will be level playing field, which is a nice change from what has been occurring over the past two years. All the best Nancy Michail"
The defendant's application for costs is based on the failure of the plaintiff to comply with my order of 9 February 2017 and the history of this litigation. The general rule is that costs follow the event and there are no grounds put forward by the plaintiff for any variation of this fundamental principle. Accordingly, I propose to order that the plaintiff pay the defendant's costs of the application and of the proceedings.

Referral to the Office of the Legal Services Commissioner

Ms Chrysanthou also asked me to note, on the public record, the plaintiff's persistence in recording proceedings in this court and in the Court of Appeal (as is admitted to in her emails above), without leave to do so being formally sought, let alone granted, and contrary to my express orders for her to refrain from doing so. Such recording without leave is not permitted: Jane Doe 1 v Dowling [2017] NSWSC 57.
I also note that, while the plaintiff has not been prepared to conduct her case with expedition, she has nevertheless been able to find time to send a series of vituperative letters to court staff, judicial officers and a wide range of unrelated parties. A summary is set out as a schedule to my previous judgment. The tone and content of these emails (notably those addressed to the pro bono lawyers who assisted her) fall well short of what is acceptable for a member of the legal profession, even making allowances for the emotional stress a practitioner may suffer when acting on his/her own behalf. The sending of such correspondence to the court is also not to be encouraged.
In addition to recording these proceedings and sending the correspondence referred to above, the plaintiff's manner of representation of herself in this court has made the conduct of these proceedings difficult. I note the observations expressed by the New South Wales Court of Appeal in Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396 at [10] as to the plaintiff's conduct of her application in that court.
These are matters of concern. I accordingly propose to send a copy of this judgment to the Office of the Legal Services Commissioner.

Orders 1. Plaintiff called three (3) times outside Court 13D at 9:05am - No appearance. 2. Plaintiff called three (3) times outside Court 13D at 9:25am - No appearance. 3. Plaintiff called three (3) times a third time outside Court 13D at 9:50am - No appearance. 4. Proceedings are dismissed. 5. Plaintiff pay defendant's costs of the application and of the proceedings. 6. A copy of this judgment is to be forwarded to the Office of the Legal Services Commissioner.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2017

Background

These are proceedings for defamation which were commenced on 20 February 2015 but which, as my previous five judgments (Michail v Mount Druitt & Area Community Legal Centre [2015] NSWDC 145; Michail v Mount Druitt & Area Community Legal Centre (No. 2) [2015] NSWDC 214; Michail v Mount Druitt & Area Community Legal Centre (No. 3) (District Court of New South Wales, Gibson DCJ, 9 February 2016); Michail v Mount Druitt & Area Community Legal Centre (No. 4) (District Court of New South Wales, Gibson DCJ, 1 June 2016); Michail v Mount Druitt & Area Community Legal Centre (No.5) [2017] NSWDC 13) and the judgment of the New South Wales Court of Appeal (Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396) demonstrate, have not progressed past the defendant's successful challenges to the statement of claim, despite the action having been managed in a specialist list over the past two years.

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (2)

Cases Cited (5)

Cited By (1)